Kent County Superior Court (K1/12-341A) Bennett R. Gallo Associate Justice
For State: Virginia M. McGinn Department of Attorney General
For Defendant: Lara E. Montecalvo Office of the Public Defender
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WILLIAM P. ROBINSON III ASSOCIATE JUSTICE.
The defendant, Tony Gonzalez, appeals from his conviction following a jury trial in Kent County Superior Court. The defendant was convicted of one count of murder in the first degree, in violation of G.L. 1956 § 11-23-1; one count of assault with intent to commit murder, in violation of G.L. 1956 § 11-5-1; one count of "discharg[ing] a firearm while committing a crime of violence, to wit, murder, resulting in the death of Carl Cunningham, Jr., " in violation of G.L. 1956 § 11-47-3.2; and one count of "discharg[ing] a firearm while committing a crime of violence, to wit, assault with intent to commit murder, " in violation of § 11-47-3.2. On appeal, Mr. Gonzalez contends that the trial justice erred in failing to grant his motion to suppress certain evidence that was obtained as a result of his warrantless arrest in his home. He specifically posits that "neither exigent circumstances nor consent justified the failure of [the] * * * police to obtain a warrant * * *." Mr. Gonzalez also argues on appeal that the trial justice erred in failing to "remove two biased jurors" from the jury or, in the alternative, grant a mistrial.
For the reasons set forth in this opinion, we vacate the judgment of the Superior Court and remand the case for a new trial.
I Facts and Travel
On May 22, 2012, a Kent County grand jury indicted Mr. Gonzalez on the aforementioned four charges: one count of first-degree murder; one count of assault with an intent to commit murder; one count of discharging a firearm while committing a crime of violence, to wit, murder; and one count of discharging a firearm while committing a crime of violence, to wit, assault with an intent to commit murder. The charges against defendant arose out of a shooting which caused the death of Carl Cunningham, Jr. In order to provide some preliminary orientation with respect to the factual and legal matters that are addressed in the following pages, we begin by simply noting that it is undisputed that Mr. Cunningham was shot to death in January of 2012 in a home on Nausaucket Road in Warwick, Rhode Island, and that Patricia Dalomba and Matthew Chivers were also present in that home at the time of the shooting. The police quickly had ample reason to suspect that defendant, Tony Gonzalez, was the person who had shot Mr. Cunningham.
Immediately preceding the start of defendant's jury trial, a hearing was held regarding defendant's motion to suppress. On appeal, he alleges that the following should have been suppressed: (1) his statement regarding the location of the gun which the police were asking him about during the course of his arrest; and (2) certain evidence derived from the search of his residence following his arrest. We relate below, in pertinent part, what occurred at the motion to suppress hearing.
A The Hearing on Defendant's Motion to Suppress
The basis of defendant's motion to suppress was his contention that his arrest was unlawful because the police did not have a warrant to enter his home and arrest him. The parties do not dispute the fact that the police did not have either an arrest warrant or a search warrant when they entered defendant's home and arrested him.
1. The Testimony of Detective Thomas Digregorio
Detective Thomas Digregorio testified that he was employed by the Warwick Police Department on the date in question. He stated that his involvement with the instant case began when he was "called in on the investigation" in the early morning hours of January 22, 2012. He further testified that, shortly after being called in, he and Det. Timothy Grant interviewed Matthew Chivers, who was present during the shooting of Carl Cunningham, Jr., which shooting had occurred around midnight. The following is the information which Det. Digregorio stated was provided by Mr. Chivers:
"He told us that he had been dating a woman who lives at that house where the homicide occurred name Patricia Dalomba; that he had been dating her approximately the past month, since December of 2011. He stated that about three days prior he had spoken with Patricia's ex-boyfriend on the phone. According to Mr. Chivers, Patricia was getting harassing phone calls and texts from her ex-boyfriend who's [sic] name was Tony. He didn't know Tony's last name. He said that about three days prior to us speaking to him he talked to Tony on the phone after he, Tony had called Patricia, and he told Tony that in no uncertain terms to stop calling and texting her and harassing her. * * * The afternoon prior [to the murder], Mr. Chivers received a phone call from Tony Gonzalez stating that he was going to catch him sleeping, and he took that as a threat. * * * [H]e also stated that Tony * * * had come to the house to fight him at about midnight that night."
Detective Digregorio went on to state that the investigation quickly revealed that Tony Gonzalez had entered Ms. Dalomba's house and fired several shots, striking Mr. Cunningham, who happened to be in the house along with Mr. Chivers and Ms. Dalomba. Mr. Cunningham was killed as a result of the shooting.
It was Det. Digregorio's testimony that he and Det. Grant "went to a couple of locations in Providence in order to try to locate the defendant because he was on the run at that point and [they] were afraid of destruction of evidence, but also [they] were afraid that given the fact that he was armed and dangerous, that he might be a threat to others * * *." He proceeded to state that, when defendant was eventually located at his home in Providence, he and Det. Grant met up with Providence police officers and other detectives from the Warwick Police Department at Providence Police Substation 7, from which location the group of law enforcement officers all proceeded to defendant's apartment. Detective Digregorio then testified that, after defendant's arrest in his apartment, defendant's mother, Cira Gonzalez, gave written consent to a search of the apartment at 8:10 a.m. on January 22, 2012; he added that she was calm at the time she gave consent.
On cross-examination, Det. Digregorio was specifically asked why the police did not obtain an arrest warrant to arrest Mr. Gonzalez and he replied:
"We went to Mr. Gonzalez's house about seven hours after the murder had occurred. Being involved in several homicides and being the case agent on at least two of them, I know that things evolve quickly and everybody doesn't have full information * * *. In this case we had a homicide that occurred in the city of Warwick where there's a fugitive on the loose that's armed. We try to track that individual and ultimately did to prevent any further loss of life, including his. Sometimes people that murder take their own lives. We also try to prevent any destruction of evidence. All those things happen very quickly, and given the facts and circumstances I feel it was the right thing to do. There wasn't time. Time was of the essence at that point. * * * We were trying to track down Mr. Gonzalez to try and prevent a violent fugitive who was armed, who might be a danger to himself and others, and who might be trying to get rid of evidence. To sit down at a desk and type out a warrant at that point in time to me was a waste of resources, in my opinion."
2. The Testimony of Detective Timothy Grant
Detective Timothy Grant was a detective in the Warwick Police Department on January 22, 2012. Detective Grant testified that, "shortly after one o'clock in the morning" on that date, he was "advised to come back to work to assist * * * in a homicide investigation." According to his testimony, it had been shortly after midnight that the Warwick Police Department "got the call" about the homicide. Detective Grant then testified that, when he arrived at the station, he was told that a man named "Tony Gonzalez" had "shot and killed an individual named Carl Cunningham." Detective Grant stated that, later that morning, he and Det. Digregorio were following some leads in Providence when they received a phone call from Detective Sergeant LeBlanc "indicating that the Defendant may be at his mother's address [(where defendant was also living)] in the Chad Brown housing complex" in Providence. According to Det. Grant, Det. Sgt. LeBlanc indicated that he had come by that information "through a controlled phone call with the Defendant's brother, " Juan Zachary Garcia.
It was the further testimony of Det. Grant that he and Det. Digregorio arrived at Providence Police Substation 7 "shortly before 7:00 a.m." on January 22. He added that they "waited for additional Warwick personnel to arrive * * *." He next testified that Warwick and Providence officers subsequently "took a caravan" to 48 June Street, Apartment J in Providence-defendant's mother's apartment, where defendant was living; Det. Grant added that the officers set up a perimeter around the apartment.
It was subsequently Det. Grant's testimony that, before the police set up the perimeter, they had received information from defendant's brother that defendant "typically [slept] with a handgun under his pillow." From Det. Grant's perspective, that fact created a "huge officer safety issue;" he added that the police had additional concerns about officer safety due to the nature of the crime that defendant was suspected of having committed. Moreover, Det. Grant stated that the police were concerned about the destruction of evidence, and he also said that they had been told, by the mother of Patricia Dalomba, that in the latter's conversations with defendant he had acknowledged that he owned a firearm, carried a firearm, and liked to shoot at the range.
Detective Grant's testimony then returned to the arrest of defendant. He testified that he observed a woman answer the door to the apartment, which woman was "later identified as the Defendant's mother, Cira Gonzalez;" he added that she "exchange[d] words" with an officer and "allowed an entrance into the house, " but Det. Grant acknowledged that he did not hear the "exact conversation." On cross-examination, Det. Grant stated that the time between Ms. Gonzalez opening the door of the apartment and the officers entering the apartment was "ten, fifteen seconds."
It was Det. Grant's further testimony that he then entered the house behind members of the Providence Police Department; he stated that about six officers entered before him. According to his testimony, he then proceeded to ascend the stairs and saw "Providence Police officers with a subject on the ground attempting to handcuff him." He also testified that the officers arresting defendant were asking him, even before he was handcuffed and the arrest was effectuated, where his firearm was and that defendant stated in response: "'It's not here.'"
Detective Grant added that he was later informed that consent to search the premises had been granted by both defendant and defendant's mother. He testified that he proceeded to search defendant's bedroom, adding that that search resulted in the discovery of a black vest, a black jacket, and a black scarf-which items were consistent with "what [he] knew to be the items that Defendant wore on the previous evening of the shooting."
3. The Testimony of Officer Joseph Dosreis
Officer Joseph Dosreis testified that, as of the time of trial, he had been a patrol officer with the Providence Police Department for over seventeen years. He proceeded to testify that, on January 22, 2012, he met Warwick detectives at a Providence substation "in regards to an ongoing search for a wanted subject." According to his testimony, he was told by other police officers that the suspect "should be" in possession of a weapon and "maybe [sic] in his bedroom sleeping with his weapon under his pillow."
The further testimony of Officer Dosreis indicated that a little after 7:00 a.m. he drove to defendant's residence in a marked police car, in uniform, wearing a bulletproof vest, and "assum[ed] [his] position" at the front door to the apartment; he added that a "couple of officers" were behind him. He further testified that his firearm was holstered but that the other officers behind him had their firearms "displayed." Officer Dosreis added that, in entering the apartment and effectuating the arrest of defendant, he used a "tactical shield, " which he described as a "protective shield similar to that of a riot type shield * * * extending your body armor."
According to Officer Dosreis's testimony, he proceeded to knock on the front door and was asked who it was, to which he responded "'Providence Police;'" he stated that the door was subsequently opened by a middle-aged, Hispanic female. Officer Dosreis testified that he identified himself again and twice asked for information regarding "where Tony was." He testified that, out of concern for his own safety, it was a hurried conversation; he said, however, that, despite it being a hurried conversation, he and the woman "had eye contact." He stated: "I asked for Tony, where is he, where is he. And I was under the impression that he would be up in the bedroom so I looked and she looked up toward the stairs * * *." He further testified that the woman "indicated with her eyes and gestured toward the top of the stairs." He added that he then entered the apartment and proceeded to "sprint" up the stairs while loudly identifying himself. It was his testimony that once upstairs he saw a man fitting the description of defendant, whom he "shoved to the ground, with the use of the shield." He added, on cross-examination, that he had his gun drawn at the time he "sprint[ed]" up the stairs.
Officer Dosreis's testimony indicated that, once he had defendant on the ground and was attempting to handcuff him, he asked repeatedly where the gun was, to which defendant responded: "'It's not here. It's not in the bedroom. I don't have a gun.'"
4. The Testimony of Detective John McHale
Detective John McHale testified next. He stated that he was an officer in the Warwick Police Department. According to his testimony, on the morning of January 22, 2012, he and Detective Joseph Mee "spoke with" Patricia Dalomba for about an hour and a half, beginning at 1:30 a.m. He testified that she identified the shooter as Tony Gonzalez, her ex-boyfriend, whom she still saw on a regular basis; he added that she stated that Mr. Gonzalez was known to carry a black nine millimeter handgun "everywhere he goes."
Detective McHale further testified that, after defendant was arrested, he and Patrolman Greg Johnson transported defendant from the apartment to the police station. He stated that, during that drive, they pulled the police cruiser over in a parking lot and Patrolman Johnson read a "consent to search form" to defendant through the open back door of the police cruiser. He further testified that Mr. Gonzalez was uncuffed and was "afforded the opportunity" to read the form. According to Det. McHale's testimony, after reading the form, Mr. Gonzalez ultimately signed it. He added that defendant did not appear to be under the influence of any drugs or alcohol at the time he signed the consent to search form.
On cross-examination, Det. McHale testified that the police did not get a warrant to arrest defendant because they knew he had "shot Carl Cunningham several times, had a weapon that he carries all the time, and you don't know what the person's going to do once they leave with that weapon. They could have got rid of the weapon, hurt someone else, or [himself]. * * * Time is of the essence." On redirect examination, he added that the police had to act quickly in arresting defendant because the controlled call "informed" defendant that the police were looking for him.
5. The Testimony of Detective Joseph Mee
Detective Joseph Mee testified that, at the time of trial, he had been with the Warwick Police Department for approximately ten years. He testified that, when he was called into work approximately sixteen minutes after midnight on the morning of January 22, 2012, he was told about the shooting death of Carl Cunningham, Jr. on Nausaucket Road in Warwick; he added the following:
"What we were told was that the suspect, Tony Gonzalez, there was some back and forth with text messaging and phone calls in relation to him and Matt Chivers possibly getting into some type of fight. Tony Gonzalez shows up at the house shortly before midnight, wanted to fight with Matt Chivers. Matt Chivers was inside the residence looking out the window. He saw a couple of vehicles drive by, saw figures walking up the driveway. He returned to the back bedroom where he met with Patricia Dalomba. A short time later Cunningham, who was on the couch, had made his way back to the rear bedroom and the three of them were in the bedroom when Tony Gonzalez, the suspect, entered the residence, made his way back to the back bedroom, obviously without consent, and began shooting inside the residence in the back bedroom."
It was Det. Mee's testimony that he and Det. McHale then conducted an interview at the police station with Patricia Dalomba; he added that she told him that Mr. Gonzalez carried a gun "pretty much on an everyday basis." It was also his testimony that Ms. Dalomba not only witnessed the shooting but also saw defendant leave her house after the shooting and enter a vehicle. On cross-examination, Det. Mee indicated that he had learned from other detectives that Mr. Chivers was in the closet at the time of the shooting, making Ms. Dalomba the only eyewitness.
It was Det. Mee's further testimony that, after defendant was arrested, defendant's mother brought clothes downstairs for him to wear while being taken to the police station and that the gray boots which she brought were "something that was described by Patricia Dalomba" as the footwear which defendant "had worn the previous evening."
The testimony of Det. Mee then addressed Ms. Gonzalez's consent to search the apartment. He stated that he read the consent to search form to her and allowed her to read it herself. He added that she subsequently signed it and, after learning that Mr. Gonzalez's consent had also been obtained, he proceeded to search Mr. Gonzalez's bedroom. It was his testimony that that search uncovered "an open black gun case, " "miscellaneous gun parts, " "a magazine which was almost fully loaded, " and "a receipt from D & L Gun Store in Warwick, Rhode Island" that reflected the purchase of a "nine millimeter Taurus" (which, according to the detective's testimony, was the type of gun that Ms. Dalomba told him Mr. Gonzalez customarily carried). Additionally, he stated that during the search of defendant's bedroom the police seized "a bubble vest, " "a black and blue and white scarf, " and "a black jacket;" he stated that they also seized the gray boots Ms. Gonzalez had brought downstairs for her son to wear. According to Det. Mee, all of those items matched Ms. Dalomba's description of what Mr. Gonzalez had been wearing during the shooting.
6. The Testimony of Cira Gonzalez
Cira Gonzalez testified that she is defendant's mother and that defendant was living with her at 48 June Street in Providence at the time of his arrest. She testified that, when she opened the door for the police on January 22, 2012, she "saw a whole bunch of cops with shields and guns;" she added that she "didn't say [any]thing." She answered in the affirmative when asked whether or not the officers' guns were drawn. It was her testimony that, when she opened the door, the police "didn't say nothing. They just all pushed me back and they all went upstairs. * * * [T]hey just walked in yelling 'Where's Tony? Where's Tony?'" She stated that, when she indicated in the direction of the upstairs in response to their question, they were already upstairs.
On cross-examination, Ms. Gonzalez added that she did not hear the police identify themselves before she opened the door to the apartment. She was questioned regarding whether the officers pushed her out of the way when they entered the apartment, and she made the following statement: "I mean, they didn't actually push, you know?" When she was then asked whether the police walked in gently she stated: "Not gently, They just pushed, you know. They walked in, and, you know, I had no other choice but to walk back because they were walking in." She further testified that the police never physically put their hands on her. During the course of cross-examination, Ms. Gonzalez answered in the affirmative when asked if she "pointed" up the stairs in response to the officers asking her the location of her son.
7. The Decision of the Trial Justice
Cira Gonzalez was the last witness to testify at the hearing on the motion to suppress. The attorneys were then given an opportunity to argue before the trial justice made his ruling.
The first issue addressed was the statement of defendant regarding the gun not being in the apartment, which he made during his arrest and before he was read his Miranda rights. The trial justice denied the motion to suppress that statement, finding that the question was "prudent" to ask without the "formal advisement of Miranda" given the concern for the police officers' safety and the public safety. He specifically stated that the officer who made the arrest "had every reason to believe that [defendant] was armed."
Defense counsel then addressed the voluntariness of the signing of the consent to search forms by defendant and his mother. With respect to both consents, the trial justice held that there was no evidence that they were coerced. Moreover, he stated that there was no basis for the suggestion that Mr. Gonzalez's consent was not "free and voluntary." He therefore denied defendant's motion to suppress the evidence on the grounds of lack of consent to search.
Defense counsel then proceeded to argue for suppression of the evidence due to the fact that the police did not have an arrest warrant or a search warrant. The trial justice held that there were exigent circumstances in the case that justified the failure of the police to obtain a warrant. The trial justice stated as follows:
"It's obvious the Warwick Police Department deployed their resources in several directions. They had investigators work the scene. They also had officers, it sounds to me from the testimony, it's pretty clear, Detective Mee and others were assigned to locate the suspect, interview witnesses. Miss Dalomba and Mr. Chivers were interviewed at the station within an hour after this incident occurred; an hour or more, an hour or two. So, they just weren't all at the scene taking their time taking pictures. That's not the picture I got from the evidence. It's pretty clear to me that these officers within the wee hours of the morning, within hours of the alleged offense having occurred, are in the process of trying to apprehend, chase down a suspect who just killed somebody with a firearm, who, to their knowledge, still has the firearm and who knows what he's up to. They apprehended this fellow at six o'clock in the morning, or seven o'clock in the morning. I think located -- they realized where he was around six o'clock in the morning, and I think the arrest, if my memory serves me right, was somewhere between six and seven in the morning; that being, the June Street apartment of his mother. If those aren't exigent circumstances, I don't know what are."
The trial justice made a further finding to the effect that the officers' initial entrance into the apartment was made with Ms. Gonzalez's consent. He stated that Ms. Gonzalez "maybe felt rushed" but that, despite the lack of verbal permission, she "allowed them to enter." Consequently, he denied defendant's motion to suppress evidence resulting from the arrest and the subsequent search of the apartment.
In due course, a jury trial was held over nine days in February of 2013. We summarize below the salient aspects ...